Majority
p. 159M'Intyre and Bradford against Scott.
Headnote
A mortgagee of session, is n oi U-able for repairs or necessaries ^lshed 'thcTHIS action was brought to recover the value of artides furnished xby the plaintiffs, who were ship-chand- , r i • /-t lers, for the brig Ceres.
The brig arrived from a voyage, the 17th November, 1807. Being in want of ship-chandlery, the plaintiffs
p. 160
supplied the articles, from time to time, on the order of Charles Dayton, the master. The brig was owned by Henry Wylie, who resided in New-York, where she was registered; and when in port, previous to her last voyage, was supplied by the plaintiffs, on the order of the master, and they were paid by Wylie. When the articles in question were furnished, Wylie was in good credit; and the defendant having lent him a note for 2,000 dollars, dated 30th November, 1807, payable in 60 days, for his accommodation, took from him a bill of sale of the brig, which was, in its terms, an absolute bill of sale, being in the usual form, dated the 30th November, 1807; and on the 9th January, 1808, it was deposited at the custom-house, for the purpose of preventing a register being granted to any other peráon. The bill of sale was taken by the defendant, as collateral security, for the payment of the note when it should fall due; and a writing or defeasance was executed by the defendant and Wylie to that effect, at the time the bill of sale was executed, which was not, however, attached to the bill of sale, nor deposited at the custom-house with it. Wylie stopped payment before the note became due, and it was taken up by the defendant.
After the bill of sale was executed, Dayton, the master, continued in possession of the brig, acting under the orders of Wylie; and after the defendant had paid the note, he applied to Wylie for. the repayment of the money, or that the brig should be delivered into his possession ; but Wylie and Dayton both refused to give up tlqe brig to the defendant, and she continued to remain in their possession and under their control, until the 3d May, 1808, when Wylie repaid the 2,000 dollars, with interest, to the defendant; and, by direction of Wylie, the defendant executed a bill of sale of the vessel to Dayton, in the usual form; and for the purpose of making such conveyance, the defendant took out a register, and took the oath prescribed by law, for that purpose.
p. 161was stopped by th court, who desired to hear the other side. The general question is, how far a mortgagee of a ship, not in possession, is liable for necessaries furnished for the ship ? The cases in England in which it has been decided that the mortgagee was not liable, are those where the credit was given to, and the contract made with, the mortgagor. In Jackson v. Vernon,[5] the goods were supplied by order of Palmer, the owner, and therefore the credit was given to him. The court, too, in that case, relied on the cases of Eaton v. Jacques,[2] as analogous and in point, where it was held that the person to whom a term had ■ been assigned, by way of mortgage, was not liable on the covenants to the lessor; but that case is much shaken, if not entirely overruled, by Lord Kenyon, in Westerdell v.Dale.[3] His lordship says, “ As to the cases respecting the mortgagee; whether in or out of possession, he is the legal owner, and must be so considered in a court of law, notwithstanding his title is subject to equitable interests and he held, that if there was any difference between the mortgagee of real and personal property, the
The plaintiff furnished the articles, between the 20th November, 1807, and the 8th January, 1808, inclusive; and Wylie stopped payment on the 9th January, 1808. The plaintiff knew nothing of the bill of sale to the defendant, until after he had conveyed her to Dayton, who continued, during all the time as the master; and his wages, the wharfage, and other charges, were paid by Wylie. The articles furnished by the plaintiff were necessary for the repair of the vessel, and were charged to the brig Ceres and owners.
A verdict was taken, by consent, for the plaintiff, subject to the opinion of the court, on a case containing the above facts.
S. Jones, jun. for the defendant,
Wells, contra.
p. 162distinction afforded a strong argument against the morfc»gagee of a ship. The present case is distinguishable from that of Jackson v. Vernon, and is the precise case which Abbott[5] says is still undecided in England. He observes that “ thegeneraj question will most properly arise in the case of a contract made by the master in that characterarid this is precisely the case here. This court must, therefore,, decide the general question. The subject was discussed by the counsel in Hodgson v. Butts,[5] in the supreme court of the United States, but the question was not decided by the court. If the defendant was not in the actual possession, he had the power to take possession at any time. The master was his agent or trustee, and was bound to deliver him the possession. If he refused to give possession,, the defendant had no occasion to resort to an action, but might turn the master out when he pleased-. The defendant was the legal owner, and had the legal dominion over the ship. The bill of sale was absolute and as the defeasance or condition was, afterwards, broken, all the right of Wylie, if he had any, was completely p-one.
The opinions of the judges in Jackson v. Vernon, went upon the ground, that a mortgagee of a. ship, out of possession, was not liable for necessaries furnished the ship, for he does not take the freight. This is precisely such a case. All the supplies were furnished before the note, for which the ship was mortgaged as (security, became payable. No credit was given to the defendant. He was not known until after the goods were delivered. He never had the possession of the brig, nor could he obtain it; and the debt has since been paid, and the pledge redeemed. It would greatly impair the value • of such security, if a mortgagee, out of possession, were to be made liable for goods so furnished to the ship-There must be judgment for the defendant.